State v. Crowdell

• Decision Date: 16 February 1990
• Docket Number: Nos. 89-434,89-435,s. 89-434
• Citation: 451 N.W.2d 695,234 Neb. 469
• Parties: STATE of Nebraska, Appellant, v. Robie D. CROWDELL, Appellee. STATE of Nebraska, Appellant, v. Michael CROWDELL, Appellee.
• Court: Nebraska Supreme Court

Page 695

451 N.W.2d 695

234 Neb. 469

STATE of Nebraska, Appellant, v. Robie D. CROWDELL, Appellee.

STATE of Nebraska, Appellant, v. Michael CROWDELL, Appellee.

Nos. 89-434, 89-435.

Supreme Court of Nebraska.

Feb. 16, 1990.

Syllabus by the Court

1. Constitutional Law: Statutes: Appeal and Error. Alleged unconstitutionality of a statute presents a question of law, which must be determined by the Supreme Court independent from the conclusion reached by a trial court on the constitutional question.

2. Constitutional Law: Statutes: Standing. For standing to contest constitutionality of a statute, the contestant must be one who is, or is about to be, adversely affected by the statute in question and must show that, as a consequence of the statute's alleged unconstitutionality, the contestant is deprived of a constitutionally protected right.

3. Constitutional Law: Statutes: Proof. One claiming that a statute is unconstitutional has the burden to show that the questioned statute is unconstitutional.

4. Constitutional Law: Statutes. Unconstitutionality of a statute must be clearly demonstrated before a court can declare the statute unconstitutional.

5. Criminal Law: Statutes: Notice. An essential purpose of a penal statute is to provide notice to the ordinary person concerning conduct which is proscribed as criminal.

6. Criminal Law: Statutes: Due Process: Notice. Due process requires that a penal statute supply adequate and fair notice of the conduct prohibited and also supply an explicit legislative standard defining the proscribed conduct, to prevent arbitrary and discriminatory enforcement at the discretion of law enforcement officials.

7. Criminal Law: Statutes. A penal statute is given a strict construction which is sensible and prevents injustice or an absurd consequence.

8. Statutes. When statutory language is plain and unambiguous, no judicial interpretation is needed to ascertain the statute's meaning so that, in the absence of a statutory indication to the contrary, words in a statute will be given their ordinary meaning.

9. Criminal Law: Statutes: Due Process: Notice. Neb.Rev.Stat. § 28-707(1)(a) (Reissue 1989) supplies sufficient notice concerning the criminal conduct prohibited by the statute and is in accordance with due process.

10. Constitutional Law: Statutes. Neb.Rev.Stat. § 28-707(1)(c) (Reissue 1989) is not void for vagueness and is constitutional.

Charles W. Campbell, York County Atty., York, for appellant.

Kevin V. Schlender, York, for appellee Robie Crowdell.

Max C. Mankin, Aurora, for appellee Michael Crowdell.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

SHANAHAN, Justice.

In separate informations filed in the district court for York County, the State charged each of the defendants, Robie D. Crowdell and Michael Crowdell, with one count of intentional abuse of a minor child, John Jeffrey Crowdell. Intentional violation of Neb.Rev.Stat. § 28-707 (Reissue 1989) is a Class IV felony, which is punishable by maximum imprisonment for 5 years, a $10,000 fine, or both such imprisonment and fine. Neb.Rev.Stat. § 28-105(1) (Reissue 1985).

Section 28-707 provides:

(1) A person commits child abuse if he or she knowingly, intentionally, or negligently causes or permits a minor child to be:

(a) Placed in a situation that endangers his or her life or health; or

(b) Cruelly confined or cruelly punished; or

(c) Deprived of necessary food, clothing, shelter, or care.

....

(4) Child abuse is a Class IV felony if the offense is committed knowingly and intentionally.

Each of the Crowdells filed a motion to quash the information on the claim that § 28-707 is vague and, therefore, unconstitutional as a denial or deprivation of due process guaranteed by the Constitutions of the United States and Nebraska. See, U.S. Const. amend. XIV; Neb.Const. art. I, § 3. Concluding that the provisions of § 28-707(1)(a) and (c) were unconstitutionally vague, the district court sustained Crowdells' motions and quashed the information against each of them insofar as the prosecution was based on § 28-707(1)(a) and (c), which the court had found to be unconstitutional. The State appealed pursuant to Neb.Rev.Stat. § 29-2315.01 (Reissue 1989) (county attorney's appeal from a decision in a criminal case).

STANDARD OF REVIEW

Alleged unconstitutionality of a statute presents a question of law, which must be determined by the Supreme Court independent from the conclusion reached by a trial court on the constitutional question. See, State ex rel. Spire v. Northwestern Bell Tel. Co., 233 Neb. 262, 445 N.W.2d 284 (1989); Williams v. Gould, Inc., 232 Neb. 862, 443 N.W.2d 577 (1989).

The State's exceptions are twofold. First, the State contends that Crowdells lack standing to attack the constitutionality of § 28-707(1)(a) and (c). Second, the State asserts that § 28-707(1)(a) and (c) are not void and unconstitutional as a denial or deprivation of a defendant's right to due process relative to a criminal statute which is the basis for prosecution of the defendant.

STANDING

"For standing to contest constitutionality of a statute, the contestant must be one who is, or is about to be, adversely affected by the statute in question and must show that, as a consequence of the statute's alleged unconstitutionality, the contestant is deprived of a constitutionally protected right....

....

"Courts will not decide a question concerning the constitutionality of a statute unless such question has been raised by a litigant whose interests are adversely affected by the questioned statute. A court has no power to summarily pass upon the constitutionality of a legislative act, but has power only to decide justiciable disputes. A court's power to declare a statute unconstitutional may be invoked only when the challenged statute affects a litigant's right under the Constitution. [Citations omitted.]"

State v. Monastero, 228 Neb. 818, 837-38, 424 N.W.2d 837, 849-50 (1988) (quoting from In re Estate of West, 226 Neb. 813, 415 N.W.2d 769 (1987)). See, also, State v Michalski, 221 Neb. 380, 377 N.W.2d 510 (1985); State v. Irwin, 208 Neb. 123, 302 N.W.2d 386 (1981).

Both Crowdells face potential criminal liability as a consequence of conviction on the charges against them in the present proceedings. Thus, punishment for violation of the statute in question creates a direct threat to the liberty of Crowdells, who, therefore, have standing for a constitutional challenge based on the alleged vagueness of § 28-707(1)(a) and (c).

CONSTITUTIONALITY OF § 28-707(1)(a) AND (c)

Crowdells contend that the word "endangers" in § 28-707(1)(a) and the word "necessary" in § 28-707(1)(c) fail to define, with requisite constitutional definitude and sufficiency, the conduct sought to be prohibited by the statute, which thereby deprives them of notice necessary for due process in and from a criminal statute utilized for prosecution of a defendant. The State argues that the questioned language in § 28-707(1)(a) and (c) is easily understood by persons of ordinary intelligence and affords sufficient notice concerning the conduct condemned by the statute.

"One claiming that a statute is unconstitutional has the burden to show that the questioned statute is unconstitutional." State ex rel. Spire v. Northwestern Bell Tel. Co., 233 Neb. 262, 265, 445 N.W.2d 284, 288 (1989). Unconstitutionality of a statute must be clearly demonstrated before a court can declare the statute unconstitutional. State v. Copple, 224 Neb. 672, 401 N.W.2d 141 (1987).

"In order to meet constitutional standards of due process, a penal statute must be sufficiently clear so that a person of ordinary intelligence has fair notice of what exactly is forbidden conduct under the act.... [I]n construing a penal statute this court will give it an interpretation which meets constitutional requirements if it can reasonably be done...."

224 Neb. at 684, 401 N.W.2d at 151 (quoting from State v. Neal, 187 Neb. 413, 191 N.W.2d 458 (1971)).

An essential purpose of a penal statute is to provide notice to the ordinary person concerning conduct which is proscribed as criminal. State v. Carlson, 223 Neb. 874, 394 N.W.2d 669 (1986).

Regarding a constitutional attack on a statute claimed to be vague, we have noted:

The vice of vagueness in a penal statute was denounced in Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983), by the U.S. Supreme Court's statement: "As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. [Citations omitted.] Although the doctrine focuses both on actual notice to citizens and arbitrary enforcement, we have recognized recently that the more important aspect of the vagueness doctrine 'is not actual notice, but the other principal element of the doctrine--the requirement that a legislature establish minimal guidelines to govern law enforcement.' [Citation omitted.] Where the legislature fails to provide such minimal guidelines, a criminal statute may permit 'a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.' [Citation omitted.]" 461 U.S. at 357-58, 103 S.Ct. at 1858-59. See, also, Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972).

State v. Monastero, 228 Neb. 818, 833, 424 N.W.2d 837, 847 (1988).

"[D]ue process requires that a penal statute supply adequate and fair notice of the conduct prohibited and also supply an explicit legislative standard defining the proscribed conduct, to prevent arbitrary and discriminatory enforcement at the discretion of law enforcement officials." 228 Neb. at 833, 424 N.W.2d at 847.

A penal statute is given a strict construction which is sensible and...